U.S. Immigration and Customs Enforcement
Carlos Martinelly Montano Inquiry
November 24, 2010 Executive Summary
This report provides the results the inquiry into the case Carlos Martinelly Montano, illegal alien, who has been charged Prince William County, Virginia with
involuntary manslaughter. August 2010, Montano crashed into oncoming traffic,
killing one passenger and critically injuring two others, all whom were Catholic nuns.
Since the incident, Montano has been detained pending resolution his criminal case. addition, ICE issued detainer prevent his release into the community once his
criminal case and any sentence are completed.
This report reviews changes programs and policies that ICE began instituting 2009 order prevent the release aliens who are criminals otherwise pose risk
public safety into the community, and identify illegal aliens incarcerated state and
local law enforcement agencies. The report also includes recommendations improve
operations and focus immigration enforcement manner that best promotes public
safety. ICE has fully implemented these recommendations.
Table Contents Executive Summary........................................................................................................ 2
II. Background and Chronology ........................................................................................ 4
III. Analysis........................................................................................................................ 6
IV. Recommendations........................................................................................................ 8 Exhibits ......................................................................................................................... 8
October 18, 2004 memorandum
August 2007 memorandum
April 2008 letter indicating completion Intensive Alcohol Education
Letters support from families and friends
June 30, 2010 memorandum
USCIS's decision administratively close the application adjust status
II. Background and Chronology
Montano 23-year-old native and citizen Bolivia who, along with his family, entered the United States illegally and without inspection 1996. the time that entered the United States, was approximately nine years old. 2007, Montano filed application with U.S. Citizenship and Immigration Services (USCIS) adjust his status that lawful permanent resident based his father's employment-based visa petition.1 December 2007, Montano was convicted for driving under the influence (DUI) Prince William County, Virginia and was sentenced serve days incarceration. The judge Prince William County, however, suspended all days the jail sentence with the result that Montano was not jailed for his offense. Local authorities did not seek determine Montanos immigration status nor did they contact ICE. the time this DUl conviction, the Secure Communities program did not exist. The Secure Communities program deploys technology allow ICE identify illegal aliens processed local law enforcement agencies based their fingerprints. Under the Secure Communities program, when the arresting authority books and fingerprints someone, the persons fingerprints are sent electronically compared against criminal and immigration databases reveal prior criminal immigration contacts.
Almost one year later, October 2008, Montano was booked into jail Prince William County and charged with another misdemeanor DUl. the time this arrest, the local authorities determined that Montano was illegal alien. Thus, ICE lodged immigration detainer against him. result the immigration detainer, immigration officers took him into custody. October 2008, Prince William County officials released him from custody. that same day, ICE officers instituted removal proceedings, serving Montano with Notice Appear (NTA) and charging him with removability because had entered the United States unlawfully 1996.
ICE agents determined that Montano was candidate for the Alternatives Detention (ATD) program and that they could ensure would appear for immigration hearings they monitored his whereabouts using GPS technology. GPS allows ICE locate alien who fails appear required for immigration proceedings.
ICE records indicate that ICE forwarded the NTA DOJs Executive Office for Immigration Review (EOIR) November 2008, approximately one month after ICE officers served Montano with the NTA. ICE again filed the NTA with EOIR December 12, 2008, because EOIR did not have record the November 2008 NTA that ICE sent. April 20, 2009, EOIR mailed notice scheduling hearing for May 2009. While EOIR had hearing scheduled for April 21, 2009, EOIR failed serve October 14, 2010, USCIS administratively closed Montano's application adjust status because was removal proceedings and jurisdiction over his immigration status resided with immigration judge within the Department Justice (DOJ).
Montano with notice the hearing. This delayed the removal proceedings. April 27, 2009, result the October 2008 DUI arrest, the Circuit Court Prince William County convicted Montano and sentenced him serve months and days jail. However, the judge Prince William County suspended months and days Montanos sentence. result the judges decision, Montano served less than two weeks Prince William County for his second DUI conviction. April 29, 2009, ICE officers lodged immigration detainer for Montano with the Prince William County Jail ensure that local authorities would turn Montano over their custody after had served his sentence. May 2009, after Montano served the portion his sentence that had not been suspended, ICE took him into custody. Based Montanos compliance during his prior participation the ATD program, ICE officers released Montano the prior order supervision (dating back 2008) with the condition that report ICE regular basis. ICE did not impose the highest form ATD. required ICE, Montano reported ICE total five times and complied with the terms his supervision. May 2009, while Montano remained criminal custody, Montano's attorney appeared his behalf immigration court before immigration judge with DOJs EOIR and requested termination the case based the application pending with USCIS. The immigration judge postponed Montanos case and selected available hearing EOIRs docket seven months later, December 2009. the course ICEs review the Montano case, was discovered that Montano had two encounters with law enforcement the county level during 2009-2010. County court records show that Montano was charged March 2009, Fairfax County, Virginia, with misdemeanor failure appear related driving without license. Local officials dismissed this charge against Montano May 2009. County officials did not contact ICE. April 27, 2010, Manassas Park police officer cited Montano for misdemeanor reckless driving. There record indicating that Montano was booked fingerprinted that Manassas Park officials contacted ICE. June 2010, Montano was convicted for reckless driving and fined $500. Again, ICE was not contacted following the citation conviction. December 2009, Montano and his attorney appeared immigration court. Montanos attorney again sought terminate the removal proceedings before DOJs EOIR. ICE opposed termination the removal proceedings because Montano's criminal record. Over ICEs objection, EOIR again postponed the case, this time until August 19, 2010. August 2010, just days before the date the rescheduled hearing before EOIR, Montano crashed his car into another vehicle, killing one nun and critically injuring two others.
III. Analysis
The focus the Montano inquiry examine the chain events ensure that (1) state and local authorities have the information they need check the immigration status offenders, and (2) offenders who threaten the community are not released. this particular case, examined ICE programs and policies and the options state and local enforcement had available the time these incidents and currently. One key area inquiry was the decision ICE 2008 place Montano the ATD program instead detaining him. Another area inquiry was pinpoint missed opportunities state, local, and federal authorities. 2008, when the decision was made release Montano, fewer beds were available the Washington, D.C. metropolitan area. addition, two policies effect 2008 supported the officers decision release Montano. The first was memorandum issued October 18, 2004, then-Under Secretary Asa Hutchinson. That memorandum granted the Director the Office Detention and Removal Operations (DRO, now Enforcement and Removal Operations ERO) discretionary authority with respect the allocation bed space for all aliens who were not subject mandatory detention pursuant statute.
The second was memorandum issued August 2007, the then-director DRO. That memorandum directed the field consider and utilize all appropriate alternatives detention for aliens. That policy, along with the 2004 policy granting broad discretion the field about how use detention resources, left the officers relatively free use discretion the Montano case and release him light the pending application with USCIS, his young age the time entry, his strong family ties, letters from his family and Catholic Charities, and the fact that had completed alcohol rehabilitation program.
The officers exercised discretion release Montano based all the factors above and based the limited availability bed space detain Montano relative the number people charged with DUI and other offenses. 2008, the consideration these factors and the relevant policies discussed above resulted decision release Montano ATD pending removal proceedings. Montanos appearance for his hearings while supervised reflects that ATD, and related forms supervision, can address the flight risk but are less useful protect public safety. compared 2008, the result today would almost certainly differ due revisions the agency's enforcement priorities and the availability tools designed ensure that available detention resources are used best protect public safety.
Since January 2009, ICE has shifted its priorities place the greatest emphasis the apprehension, detention, and removal criminal aliens who pose threat public safety. June 30, 2010, Director Morton clearly articulated agency policy and issued memorandum formally outlining these immigration enforcement priorities. This memorandum prioritizes the apprehension, detention, and removal criminal convicts
and places particular emphasis repeat offenders and aliens who pose risk public safety. Under the priorities outlined this memorandum, Montano likely would have been detained for three reasons, namely that was: (1) convict; (2) repeat offender; and (3) demonstrated danger public safety.
ICE has tools its disposal ensure uniform detention decisions focused public safety. For instance, ICE's continued expansion the Secure Communities program will identify aliens booked for offenses like DUI. Once identified, ICE's priorities, reflected Director Morton's June 30, 2010 memorandum, will help ensure that detention resources are used prevent the return criminals our streets.
This case also demonstrates the importance continuing ICE's efforts decrease the amount time case remains the non-detained docket DOJs EOIR. Unrelated this tragic case, ICE and USCIS drafted joint guidance expedite the adjudication petitions pending with USCIS for aliens proceedings. The guidance, issued August 20, 2010, will reduce the number continuances postponements that immigration judge DOJs EOIR will grant while waiting see alien may eligible for lawful permanent residence. This guidance also advises ICE attorneys decline move dismiss cases the alien has been convicted crimes poses threat public safety. Each Office Chief Counsel has standard operating procedure that discourages continuances/postponements unless good cause shown. result, Montano's pending petition with USCIS would likely carry less weight than did 2008. ICE also meeting regularly with DOJ encourage EOIR expedite the adjudication detained cases and the cases aliens supervised ATD. January 2010, ICE and DOJ started pilot program Baltimore and Miami expedite the adjudication cases which the alien ATD.
Additionally, 2010, ICE secured 500 additional beds within the jurisdiction the Field Office Director for the Washington, D.C. area. Furthermore, ICE has directed additional funds the field office covering the Washington, D.C. area funding and bed space will less likely result discretionary decisions release aliens convicted crimes, particularly repeat offenders and those who pose threat public safety.
Nationwide, however, ICE simply does not have the funding that would required detain all aliens charged with convicted DUI offenses. The most certain way ensure detention today would the addition substantial detention beds and staff manage increase the detained population. Doing so, course, would also require DOJs EOIR add immigration judges adjudicate the detained docket. Increasing the number immigration judges would result removal proceedings being adjudicated faster, and thus removals taking place more quickly. This increased turnover detainees would create additional detention space.
IV. Recommendations
Continue the rapid expansion Secure Communities identify removable aliens charged with and convicted crimes. Seek funding for staff and detention beds address all criminal aliens identified through the Secure Communities initiative.
Work with DOJs EOIR expedite the adjudication cases involving criminal aliens, including increasing the number immigration judges adjudicate the cases.
Work with DOJs EOIR expedite the adjudication cases involving aliens supervised ATD, including increasing the number immigration judges adjudicate cases.
Implement risk assessment tool nationwide. ICE has developed risk assessment tool which will built into the ENFORCE processing system. This tool will ensure that decisions regarding the detention and release aliens will completed more uniformly The tool weighted ensure sound detention decisions for aggravated felons, felons, and serious misdemeanants, such aliens convicted misdemeanor DUI, misdemeanor assault, domestic violence. Implementation hinges negotiations with Council 118 the American Federation Government Employees.
Monitor and ensure compliance with Director Mortons June 30, 2010 Civil Enforcement Priorities memorandum that detention space used detain criminal convicts, recidivists, and aliens who pose threat public safety.
Reallocate funding among field offices allow detention criminal aliens the fullest extent possible, recognizing the limitations the budget overall and the need maintain the end "catch and release" along the Southwest border.
Continue prioritize the apprehension aliens convicted crimes (including driving under the influence) who are the subject formal orders removal living large our communities.
Exhibit
lJ.S. Department Homeland Security
Washington, 20528
Ho1neland Security
www.dhs.gov
All such aliens must detained Wlless they fall within one the exceptions mandatory detention. There are priority designations among categories cases suqject mandatory detention. Questions whether given alien falls Wlder one these,' categories and must detained should bedirected local legal COWlSel.
Mandatory
Aliens subject mandatory detention under INA 236A2
Aliens expedited removal (INA 235) with limited exceptions3
Aliens subject mandatory detention removal and deportation proceedings
under INA 236(c)4
Aliens who have final orders removal subject mandatory detention under
INA (a)(2), whether ordered removed pursuant INA 238 240
proceedings5
High Priority National Security Interest aliens including aliens who are subject ongoing
national security investigation who, virtue specific information
intelligence specific the alien question raise national security concern,
identified either the Joint Terrorism Task Force, Immigration and
Customs Enforcement, U.S. Customs and Border Protection (CBP).6
Continued detention aliens with final administrative orders past 180 days
account special circumstances (i.e. CFR 241.14).
Aliens who have been issued final removal orders over 90-days old, where
removal foreseeable.
Aliens who present articulable danger the community (claimant agency must able articulate the danger)
Aliens who exhibit specific, articuable intelligence-based risk factors for terrorism national security concern not solely based the alien's race, ethnicity,
nationality religion (as identified either the Joint Terrorism Task Force, Immigration and Customs Enforcement, U.S. Customs and Border
Protection.
Aliens associated with ongoing significant criminal investigations; Prior approval the ICE National Security Unit and the ICE Office the Principal Legal Advisor required before charges may brought under either INA 2(a)(3) INA 237(a)(4). Not all aliens expedited removal proceedings are subject mandatory detention, however. See, for
example CFR 23S.3(b)(2)(iii), 23S.3(b)(4)(ii), and 235.3(b}(S)(i) allowing for parole limited circumstances medical emergency, where necessary for legitimate law enforcement objective. Note that INA 236(c)(2) authorizes release provide for protection witness, etc., where the alien
does not pose danger the safety others property and likely appear for any scheduled rroceedings.
This includes aliens ordered removed under INA 240 and criminal aliens ordered removed under INA
238. These aliens may not released under any circumstances during die 90-day removal period set forth iri INA 241 (a)(2). Following the 90-day period, the continued detention such aliens should determined pursuant criteria
s11pra and implementing guidance CFR 241.4, 241.13,
and 241.14. ICE and CBP shal track all cases where the two bureaus disagree whether particular alien poses
national security threat CBP and ICE shall review these cases quarterly basis.
Remaining criminal aliens not subject 236(c);
Aliens whose detention essential national border enforcement initiatives;
Medium Priority Suspected alien and narcotics smugglers
Aliens who committed fraud
Inadmissible, non-criminal aliens (other than expedited removal cases)
Lower Priority Worksite enforcement arrests
Final orders (beyond 179 days-not likely remove)
Aliens placed expedited removal found have credible fear and ref erred for full 240 proceedings.
Other aliens not subject required detention
Each component must ensure apprehended aliens are processed efficiently and placed the
appropriate and most expedient removal process, (e.g. stipulated, reinstatement, administrative,
expedited) minimum, the following documents must completed the apprehending
entity and presented DRO ensure each case moves swiftly through the removal process:
Original charging documents;
Completed Form 1-213 (Record Deportable/lnadmissible Alien) approved equivalent;
completed Forms FD-249 (fingerprint cards);
R-84 Form with prints and biographical information completed;
Print out results, including negative responses, name search IBIS "SQ 11" function.
IAFIS printout relating criminal history; IAFIS not available, print out
results, including negative responses, based name search either NCIC
NLETS.
Record Fingerprint Identification Number (FIN) generated the Automated Biometric Identification System (IDENT);
photographs;
Completed Form 1-217 (Information for Travel Docwnent Passport
required);
Documentation Consular Notification;
Certified conviction records, when applicable. the event that conviction records are not immediately available, the arresting officer must provide written notification the file that Certified Copy the Conviction Document has been requested, and include the administrative file the following information: the exact date and jurisdiction where the alien was convicted, the name and telephone number the referring officer and the supervisor, the name and contact
infonnation the agency official responsible for procuring the conviction record Furthennore, the arresting agency must produce the actual conviction record within days issuance the
Documentation reflecting that appropriate record checks (Central Index System (CIS), Non-Immigrant lnfonnation System (NUS), National Crime Infonnation Center (NCIC), IDENT, Interagency Border Inspection System (IBIS), etc.) have been completed;
Completed Fonn 1-203 I-203A [Order Detain Release Alien(s)] bearing the appropriate official's signature must accompany each detainee presented for detention;
Notice Custody Detennination (Fonn 1-286), indicating date and time custody
decision was made and probable charges against alien;
And any other relevant documents pertaining the detainee. ensure maximum efficiency the use the Department's finite detention bed resources, imperative that this documentation prepared and presented. Custody responsibility will not transferred ICE/Detention and Removal Operations (ORO) until ICE/ORO verifies that all the above required documentation has either been provided has been waived ICE/ORO authorizing official the detention site. The arresting delivering officer will ensure that detainees turned over the custody ICFJDRO are accompanied any personal items, identity documents, baggage and/or prescription medications that detainee's possession the time arrest.
The requirements issued memorandum March 30, 2004, Guidance ICE Implementation Policy and Practice Changes Recommended the Department Justice Inspector General, remain effect. You are responsible for ensuring implementation these requirements. CBP shall establish within days this memorandum points contact each field office coordinate obtaining conviction records for cases where the coOiction record not timely produced. Contact information shall provided the ORO Field Office: Directors and the ICE Chief Counsels. Exhibit
Office De1e111io11 and Remornl Oerarions
U.S. Department Homeland Sccuritv
-125 Street.
MEMORANDUM FOR: Field Office Directors AUG 2007
FROM: John Torres Director
SUBJECT: Bed Space Management
This memorandum reiterates Lhe need continue the effective management our funded and available bed space furtherance the DRQ mission.
Backgrow1d 2005, the Department Homeland Security and ICE re-engineered the detention and removal process end the practice "catch and release" along the Southern border. Between 2005 and 2007 the number funded beds increased from 18,500 27,500. The 200S budget will likely include another increase and will seeking additional beds 2009 well. our detention capacity cont.inues grow, does our responsibility manage those beds efficiently possible. must ensure that are considering and utilizing all appropriate alternatives detention and that are doing every tiling possible minimize the average length stay.
Discussion continue successful maximizing the use funded bed space resources, while the same time providing unprecedented support for the law enforcement missions the Department and fulfilling the ultimate encl game the immigration enforcement process, the removal all removable aliens. are proud our ability adhere priorities managing all aliens immigration proceedings, especially the detained population. must continue apply this framework while improving our management ensure remain within available resources. Our initiatives have resulted efficiencies that allowed increase our detained population historical levels.
Even with the anticipated increases detention space, must redouble our efforts manage that space efficiently can. Accordingly, each you must:
Expand the use Stipulated Orders Removal. has drafted uniform document used all Chief Counsels cases where the government and the alien jointly request the immigration judge enter order removal based stipulated facts.
Subject: Bed Space Management
When appropriate, process Mexican nationals voluntary returns.
Review final order cases the 90-day removal period and forward Section CFR
241.13
cases HQDRO CDU timely and pursuant regulations.
Consider alternatives detention (ATD) (ISAP, Electronic Monitoring. Telephonic Supervision) for cases recommended Tor release.
Non-criminal aliens who claimed credible fear and have been placed removal proceedings are eligible for bond hearing before the Immigration Judge. Consider parole for this class aliens.
Increase focus fugitive operations teams the apprehension fugitives and where collateral arrests are made, consider releasing non-criminals non-mandatory aliens case-by-case basis.
Work with local detention facilities begin telephonic hearings Video Telephonic Conferencing (VTC) hearings for aliens state and local custody prior their release ICE custody.
*Headquarters will reviewing compliance these areas. you increase your bed space management activities, important communicate with your local contacts other divisions ICE and U.S. Customs and Border Protection (CBP) regarding the detained population management procedures. Accordingly, please continue meetings with your local CBP and ICE leadership convey the necessary adjustments, discuss the current ORO bed space availability, and ascertain whether there will any increased operational need for bed space for the remainder the fiscal year.
Again, take pride successfully increasing our available bed space within existing resources and more importantly, for exceeding the number removals compared last year. will continue explore additional options ensure DRO's continued success meeting the Department's law enforcement missions.
Exhibit
ExhibitD
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